The law on joint enterprise was ‘inherently flawed’ and frequently led to miscarriages of justice, a group representing some 550 prisoners – most of whom are presently serving life sentences – told the Supreme Court this week. JENGbA (Joint Enterprise Not Guilty by Association) was invited to intervene in the case of R v Jogee which is believed to be the first time that the Supreme Court has looked at the highly contentious common law doctrine.

JENGbA argued that joint enterprise liability should only be possible where the prosecution proved the secondary party assisted or encouraged the primary offender ‘either intending or believing that the primary offender would kill with the requisite intent’. It continued: ‘The likelihood is that the secondary parties’ mens rea would then have to be established with reference to acts of assistance or encouragement, rather than from the mere fact of his participation in a lesser crime and foresight as to what the primary offender might do.’

The Supreme Court spent this week looking at whether the prosecution had to prove that a secondary offender foresaw the primary offender’s acquisition and use of a weapon for murder as ‘probable’ as opposed ‘possible’.

JENGbA, a grass roots campaign mainly comprising working class women, has played a key part in pushing for reform of the law for the last five years. The group persuaded the dramatist Jimmy McGovern to make the BBC film Common on the topic (he’s now a patron) and played a key part in the House of Common’s justice committee looking twice. At the end of last year, MPs on the committee warned of the danger of ‘justifying’ the controversial joint enterprise doctrine simply because it delivered a ‘social message’ about the perils of gang crime rather than being necessary under the law.

JENGbA raised £10,000 to cover the costs of this week’s intervention through a crowd-funding campaign via CrowdJustice. The group’s solicitor Simon Natas of ITN Solicitors and Tim Moloney QC and Jude Bunting of Doughty Street drafted the submission which argued that the current law of joint enterprise was ‘both conceptually and practically flawed’ on three grounds. Firstly, joint enterprise represented ‘a significant and unjustified departure from the historical jurisprudence on secondary liability’; it was ‘contrary to legal principle’ and risked ‘serious injustice’; and, finally, there needed to be a reformulation of the test for liability ‘re-emphasising the importance of intent’.

JENGbA argued that the test of joint enterprise had contributed to ‘a disconnect between public expectations of justice and the reality of the criminal courts’.

‘The available evidence on public opinion suggests strong support for the concept that the murder conviction should only be imposed on those who delivered the fatal blow and those who intended that the victim should be killed or seriously injured.’JENGbA

The group also argued that those wrongly convicted as secondary parties under joint enterprise faced an almost impossible challenge overturning convictions. They cited evidence from the Criminal Cases Review Commission to the justice committee last year about the additional ‘obstacles’ faced by such applicants.

For example, the CCRC pointed out that forensic evidence, or its absence, might not render a conviction unsafe if the applicant was ‘a secondary encourager on the fringes of an attack’. The Commission also told MPs that evidence on mental state was likely to be problematic as joint enterprises tended to be ‘on the spur of the moment and the relevant state of mind… fleeting’.

About Jon RobinsJon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award

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6 Comments

Christopher LennonOctober 31, 20152:19 pm

“‘The available evidence on public opinion suggests strong support for the concept that the murder conviction should only be imposed on those who delivered the fatal blow and those who intended that the victim should be killed or seriously injured.’”

Really? I would say, judging by comments I have read, that the public has very little sympathy for participants in serious crime, whether or not the individual concerned delivered the fatal blow. Perhaps there have been too many CCTV recordings showing several attackers kicking and stamping on heads and so on.

Good if the Supreme Court clarifies the law, but it won’t get many out of jail, in my view. I could be wrong, but the effect is more likely to be on future trials, of which there will be many, as the stabbings continue on our streets …

P L ClarkNovember 1, 20153:12 pm

Where is the justice of convicting a person of a crime that he/she did not commit. This is not justice this is dictatorship. Think you will find that most of the public would agree with me. Public do not want to be responsible for convicting innocent ppl. How can it be justice to convict a person that did not issue the fatal blow of murder. Wrongfully convicting innocent ppl as a message to others is not justice. If it is proven beyond reasonable doubt that a person has commited a crime and credible evidence is produced then and only then should a jury be given the opportunity to convict. Wrongful convictions are criminal. All those already convicted of these crimes should be released and the evidence reassessed so that justice will find its due course. Some of the prosecutors should be prosecuted themselves. All the public want is the truth, not high numbers of wrongful convictions.

Christopher LennonNovember 2, 20155:20 pm

The point is: those convicted did commit a crime. The debate and the case before the Supreme Court, is about the degree of their culpability and, given the mandatory life sentence for murder, whether some participants would be more justly sentenced for manslaughter. Those who associate with violent criminals, who run with them, who egg them on, or give support in any way, have always run the risk of conviction and rightly so.
Your suggestion that: “All those already convicted of these crimes should be released and the evidence reassessed so that justice will find its due course.” is absurd. Released? Some of them are dangerous. What you are really saying, put sensibly, is that there should be new trials and perhaps that will happen in some cases, but not many, I would suggest. And what do you suppose “some prosecutors” should be charged with? Do you understand the role of prosecution, defence, judge and jury in a criminal trial? It would seem not.

KarenNovember 2, 20158:50 pm

I totally agree and couldn’t have put it better myself. Do you think they will release people that are already in nail if the law on JE changes?